Opinion
2018-09703 Ind. 262/17
01-26-2022
The People of the State of New York, respondent, v. Mark Julien, appellant.
Janet E. Sabel, New York, NY (William B. Carney and A. Alexander Donn of counsel), for appellant. Michael E. McMahon, District Attorney, Staten Island, NY (Morrie I. Kleinbart, Alexander J. Fumelli, and George D. Adames of counsel), for respondent.
Janet E. Sabel, New York, NY (William B. Carney and A. Alexander Donn of counsel), for appellant.
Michael E. McMahon, District Attorney, Staten Island, NY (Morrie I. Kleinbart, Alexander J. Fumelli, and George D. Adames of counsel), for respondent.
FRANCESCA E. CONNOLLY, J.P. SYLVIA O. HINDS-RADIX ROBERT J. MILLER LARA J. GENOVESI, JJ.
DECISION & ORDER
Appeal by the defendant from a judgment of the Supreme Court, Richmond County (Alexander Jeong, J.), rendered June 8, 2018, convicting him of criminal possession of a controlled substance in the third degree, upon his plea of guilty, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant's omnibus motion which was to suppress physical evidence.
ORDERED that the judgment is affirmed.
On a motion to suppress physical evidence, the People bear the burden of going forward to establish the legality of police conduct in the first instance (see People v Berrios, 28 N.Y.2d 361, 367-368; People v Hernandez, 40 A.D.3d 777, 778). "Implicit in this concept is that the testimony offered by the People in first presenting their case must be credible" (People v Harris, 192 A.D.3d 151, 158 [internal quotation marks omitted]; see People v Fletcher, 130 A.D.3d 1063, 1064, affd 27 N.Y.3d 1177). "Once the People establish the legality of the police conduct by credible evidence, the defendant bears the burden of establishing that the arrest was not based on probable cause or that the police conduct was otherwise illegal" (People v Fletcher, 130 A.D.3d at 1064).
Here, at a suppression hearing, the officer who arrested the defendant testified that he initially approached a stationary vehicle, occupied by the defendant and two other individuals, because it was stopped in a no-parking, no-standing zone, and because, from a distance of approximately 20 feet, he could smell the odor of burnt marijuana and see the occupants of the vehicle passing back and forth what appeared to be a lit marijuana cigarette. The officer testified that, upon approaching the vehicle, he observed the defendant, seated in the driver's seat, throw a marijuana cigarette out of the window of the vehicle. The defendant was ordered out of the vehicle, and the officer conducted an initial search of the defendant, noticing a hard object in the defendant's buttocks area, which the officer did not believe to be a weapon. The officer concluded that a more thorough search of the defendant should be conducted in the safety of the police precinct station. Upon arrival at that location, the defendant was directed to an area adjacent to the prisoner holding cells, where searches where conducted, and, when the officer shook the defendant's sweatpants, a clear plastic bag containing narcotics fell to the ground.
The defendant testified at the hearing that he was smoking a tobacco cigarette at the time the officer approached and was not smoking marijuana. According to the defendant, after he was transported to the police precinct station, he was subjected to a manual body cavity search, during which the narcotics were recovered from inside of his rectal area.
"A hearing court's determination as to witness credibility is accorded great weight on appeal, as it saw and heard the witnesses, and its determination will not be disturbed unless clearly unsupported by the evidence" (id.). "'The rule is that testimony which is incredible and unbelievable, that is, impossible of belief because it is manifestly untrue, physically impossible, contrary to experience, or self-contradictory, is to be disregarded as being without evidentiary value'" (People v Garafolo, 44 A.D.2d 86, 88, quoting 22 NY Jur, Evidence § 649; see People v Moore, 166 A.D.3d 654, 654). "'Credibility is a many faceted concept... requiring a careful assessment of a number of subtle factors before testimony can be labeled as believable or unbelievable'" (People v Harris, 192 A.D.3d at 162, quoting People v Wise, 46 N.Y.2d 321, 325).
Here, contrary to the defendant's contention, the record does not compel a conclusion that the arresting officer's testimony was "patently tailored to meet constitutional objections" (People v Maiwandi, 170 A.D.3d 750, 751) or entirely contrary to common sense and experience (cf. People v Harris, 192 A.D.3d at 164-165). Under the circumstances, we see no reason to disturb the Supreme Court's credibility findings (see People v Houston, 177 A.D.3d 902, 903). Thus, according to the arresting officer's testimony, he had an objective, credible reason to approach the defendant's vehicle (see People v Semanek, 30 A.D.3d 547, 548) and probable cause to arrest the defendant for criminal possession of marijuana in the fifth degree (see People v Morgan, 10 A.D.3d 369, 370). Incident to such lawful arrest, the officer was authorized to conduct a search of the defendant's person at the scene (see Chimel v California, 395 U.S. 752, 762-763; People v Evans, 43 N.Y.2d 160, 165; People v Vanderpool, 157 A.D.3d 831, 832) and, for safety purposes, to further search the defendant upon returning to the precinct station (see People v Troiano, 35 N.Y.2d 476, 478). As such, the People established in the first instance that the physical evidence was lawfully recovered.
Likewise, we find no basis to disturb the Supreme Court's determination not to credit the defendant's hearing testimony. It follows from such determination that the defendant failed to meet his ultimate burden (see People v Berrios, 28 N.Y.2d at 367-368) of establishing that the police conduct was unlawful on the ground that he was subjected to a warrantless cavity search at the precinct station (see People v Hall, 10 N.Y.3d 303, 310-311). Accordingly, the court properly denied that branch of the defendant's omnibus motion which was to suppress physical evidence.
CONNOLLY, J.P., HINDS-RADIX, MILLER and GENOVESI, JJ., concur.